HQ 957606: Footwear, basketball; Unisex; Commonly worn by both sexes; Mens, youths and boys; Additional U.S. Note l(b) to Chapter 64, HTSUS; DeVahni International Inc. v. U.S.; Rico Import Company v. U.S.; A. Zerkowitz & Co., v. U.S.; HRL 955960 affirmed

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 957606

                         August 31, 1995


CLA-2 R:C:M 957606 DFC

CATEGORY: Classification

TARIFF NO.: 6403.91.90;   6403.99.90

Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty-Seven Broad Street
New York, N.Y. 10004

RE:  Footwear, basketball; Unisex; Commonly worn by both sexes;
     Mens, youths and boys; Additional U.S. Note l(b) to Chapter
     64, HTSUS; DeVahni International Inc. v. U.S.; Rico Import
     Company v. U.S.; A. Zerkowitz & Co., v. U.S.;   HRL 955960
     affirmed

Dear Ms. Cumins:

     In a letter dated February 9, 1995, on behalf of FILA
Footwear U.S.A. Inc. (FILA), you requested reconsideration of
Headquarters Ruling letter (HRL) 955960, dated August 19, 1994,
issued as IA 5/94 to the Area Director J.F.K. Airport. That
ruling concerned the tariff classification under the Harmonized
Tariff Schedule of the United States (HTSUS), of certain
basketball shoes.

FACTS:

     The footwear involved is FILA's "M" Squad Hi-Cut and "M"
Squad Low-Cut basketball shoes, styles 3B36 (1992 year model),
3B45 and 3B51 (both 1993 models) which are all within the U.S.
male size range of 1-6.

     In HRL 955960, Customs determined that the subject footwear
does not meet the definition of "footwear for men, youths and
boys" in additional U.S. Note l(b) to Chapter 64, HTSUS, because
it is commonly worn by both sexes. Therefore, it is classifiable
under subheading 6403.91.90, HTSUS, which provides for footwear
with outer soles of rubber, plastics, leather or composition
leather and uppers of leather, other footwear, covering the
ankle, other, for other persons or under subheading 6403.99.90,
HTSUS, which provides for footwear with outer soles of rubber,
plastics, leather or composition leather and uppers of leather,
other footwear, other, other, other, for other persons, valued
over $2.50/pair.

                                2

     You state that the classification set forth in HRL 955960 is
in error because it disregards the fact that the subject shoes
are made using male lasts. Further, it asserts an overbroad basis
for a tariff provision and it fails to substantiate that 5% or
more of the subject shoes are worn by girls.

     Therefore, it is your position that the shoes in issue are
properly classifiable under subheading 6403.91.60, HTSUS, which
provides for footwear with outer soles of rubber, plastics,
leather, or composition leather, other footwear, covering the
ankle, other, for men, youths and boys or under subheading
6403.99.60, HTSUS, which provides for footwear with outer soles
of rubber, plastics, leather, or composition leather, other
footwear, other, other, other, for men, youths and boys.

ISSUE:

     Whether the subject basketball shoes are for men, youths and
boys within the purview of Additional U.S. Note l(b) to Chapter
64, HTSUS.

LAW AND ANALYSIS:

     Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's]." In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.

          Additiona  l U.S.   Note 1 (b)   to   Chapter   64,  
reads    as
follows:

     2.    For  the  purposes  of  this  chapter:

     (b)  The  term  "footwear for men, youths and boys"  
          covers  footwear  of  American youths'  size  11-1/2 
           and  larger  for  males,  and  does  not   include
           footwear   commonly   worn   by   both   sexes.

     In the case of Devahni International Inc. v. United States,
66 Cust. Ct. 229, C.D. 4196 (1971) involving the classification
of leather sandals, the court stated that "[i]n this instance
plaintiff is not seeking to establish that the water buffalo
sandals in issue are 'commonly worn'  by women,  but rather that
they are not 'commonly worn' by women." The court then cited the
definition of the word "common" from Websters Third New
International Dictionary (1966) which states:


                                3




     4a        Occurring  or  appearing  frequently  esp.  in 
the  ordinary 
          course  of  events:   Not  unusual:   Known   or  
referred   to
          widely   or   generally   because   of   frequent  
occurrence.

     The court then referred to the definition of the word
"uncommon" from Funk and Wagnalls New Standard Dictionary of the
English language (1956) as follows:

     Exceptional,   infrequent,   odd,   peculiar,   rare,  
singular   or 
     unusual.

The court noted that the "commonly worn" concept could not be
applied  "to the class of sandals at bar"  but solely to the
individual type of footwear at issue.

     Your first claim is that the FILA "M"" Squad Hi-Cut and FILA
"M" Squad Low Cut basketball shoes should be classified as boys'
footwear because they are designed using male lasts.
Specifically, the basketball shoes in issue are made with male
lasts tailored to conform to the shape of boy's feet. Use of male
lasts renders these shoes inappropriate for use by girls.
Moreover, girls would cause serious harm to their feet if they
were to routinely wear the FILA 3B36, 3B45 and 3B51 boys'
basketball shoes. See affidavit submitted by footwear designer,
Rui Parracho in support of FILA's position.

     The case of A. Zerkowitz & Co. Inc. v. United States, 54
Cust. Ct. 151, C.D. 2525 (1965) was cited in HRL 955960 by
Customs in support of its position that the fact that the
footwear in issue was made on male lasts is inclusive evidence
that the footwear is for "men, youths and boys." You assert that
this case is thirty years old and is distinguishable from the
classification issue presented by your client. You note that HRL
955960 failed to cite the following dicta from the Zerkowitz
case:

     Apart from size, differences between male and female lasts
do not reflect differences in natural foot contour .  .  .  54
Cust. Ct. At 160.   (Emphasis added).

     You assert that while the above may have been the case in
1965, Mr. Parracho's affidavit clearly shows that male and female
lasts are constructed differently today. Currently,  male and
female lasts reflect differences in natural foot contours.
Certainly, Customs is aware that the present-day consumer is more
knowledgeable of the potentially harmful effect of using
improperly fitted shoes for playing basketball than was the 1965
consumer.

                                4

     We are not persuaded that because male and female lasts
reflect differences in natural foot contours, that females would
not wear a shoe made with a male last.   The court in Zerkowitz 
made the following relevant comment:


          The evidence   shows   a   woman    wearing a   sneaker 
 made   with  a 
          male  last    might  have   to   take   a    half  
size   smaller   than   she 
          was used to,   say  6-1/2   instead   of   7,   but  
most   retail  buyers 
          of   footwear   try   it on   anyway,   as   they  
have   learned   to  pay 
          little  reqard  to  the  maker's  alleged  sizes,  and 
the    trade 
          agrees  with  the  consumer  in  wanting  shoes  toe  
selected   by 
          actual  trial.  Indeed,   retail   sellers   frequently 
 conceal   the 
          sizes.  54 Cust.  Ct. at   160.

          There are so many variations in female foot sizes that
it is probable a good number of females would be able to wear
shoes made on a male last without damaging their feet.

           Your second claim is that HRL 955960 asserts an
overbroad basis for a tariff provision. You state that the U.S.
Court of Appeals for the Federal Circuit, in Rico Import Company
v. United States, Court No. 93-1321, expressly prohibits an
overbroad basis for a tariff. The Rico Court stated that "It]he
assertion of Customs that the reeds even as imported might be
split and would then be suitable for plaiting, strikes us an
overbroad bases for a tariff. 'The dutiable classification of
articles imported must be ascertained by an examination of the
imported article itself, in the condition in which it was
imported.' Worthinqton v. Robbins, 139 U.S. 337, 341 (1891)."

          You maintain that like Rico,   the assertion that the
FILA basketball shoes may be worn by girls is an overbroad basis
for a tariff provision. Further, Customs cannot hinder
classification of the basketball shoes in issue on the basis that
FILA does not produce a girls' basketball shoe. You submit that
this reasoning contradicts Rico because it goes beyond
consideration of the' imported article itself, and searches for
the existence of articles unrelated to those items under
consideration. Also, you suggest that under the rationale offered
by Customs in HRL 955960, any shoe which might be worn by a girl
may not be classifiable as men's, youths' and boys' footwear.

          The argument that Customs asserts an overbroad basis
for a tariff provision
 by classifying these shoes as "unisex " rather than for men,
youths and boys is incorrect.    Unlike the reeds in the Rico
case which were used solely for the 
production of reeds  for musical instruments, the subject
basketball shoes are of 
a type of  shoes that are worn by both sexes. These shoes have no
distinguishing feature which would identify them as for males 
only,  other than that they are made on male  lasts; a  factor of
which the consumer would be unaware.   It appears that you are
 drawing a restrictive base for a tariff provision by asserting 

                                5


that these shoes are only for males.

     In the past, Customs has taken the position that footwear is
considered to be commonly worn by both sexes when 5% or more of
the footwear will be sold to females. See HRL 951361 dated July
24, 1992. Your third claim is that Customs has failed to
establish that 5% or more of the subject FILA basketball shoes
are commonly worn by girls. In HRL 955960 Customs took the
position that females purchase 5% or more of the footwear in
issue. That conclusion was based on an informal survey of the
major retailers of athletic and other shoes in New York and the
administrative staff members of a major college women's
basketball team.

     You point out that even though the retailers surveyed stated
that girls buy shoes in children's shoe departments which do not
designate between boys' and girls' shoes does not establish that
girls will not look for the girls' shoes when shopping in the
children's department.

     You state that your own informal survey conducted at New
York "Payless" and "Fayva" shoe stores established that young
girls  are more likely to purchase athletic shoes that have
feminine cartoon characters, e.g., Barbie and the female Power 
Rangers.

     You have attached a copy of the questions asked during your
survey and copies of responses from three identified shoe stores
in the Washington, D.C. area. You ask us to note the small
percentage of boy's basketball shoes that may be being sold to
girls, and the confirmation of our factual contention that girls'
shoes fit girls better than boys' shoes.

     It is our observation that the result of your survey of
three stores in the Washington, D.C. area is inconclusive. We
note that one store indicated that "[f]ive percent at the most of
the 25 pairs of boy's basketball shoes sold on average were
purchased for use by girls."    Another store indicated that
"[o]f these 120 pairs sold on average per month, less than 10
pairs were purchased for use by girl's."    In this instance
there is a distinct possibility that more than 5% were sold to
females [even six pairs sold to females would equal 5%].   
Although, there are no records or statistics of what percentage
of shoes are sold to which sex, we are of the opinion that
females do purchase 5% or more of the footwear in issue.

     In cases such as this where Customs must determine if
footwear is worn by both sexes, we examine the manner of
marketing the footwear. Consideration is  given to whether the
company markets separate footwear for each sex.  See e.g.,   HRL
950439   dated   February 19, 1992,   affirmed by  HRL  951361 
dated  July
24, 1992.

                                6

     The assertion that FILA does not produce or import
basketball shoes for women or girls indicates that their shoes
are "unisex" rather than men's or boy's. In an article published
in the New York Times of March 30, 1995, Liz Dolan, VP of
marketing at Nike states "[o]ne in three high school girls play
sports," and "[b]ut most women basketball players have bought
men's shoes believing they're better." This article further
states that "[a]ccording to the Athletic Footwear Association,
women younger than 18 years old make up 43 percent of all
scholastic basketball players." Based on these figures it is
inconceivable that a company would exclude themselves from this
market and not intend to sell their shoes to women and girls.
Consequently,  the fact that they do not produce or import a
separate line for women and girls only leads one to believe that
they can capture this market with "Unisex" models which they
state are for men and boys.

     In view of the foregoing, it is our opinion that the "M"
Squad Hi-Cut and "M" Squad Low-Cut, styles 3B36, 3B45 and 3B51
which are all within the U.S. male size range of 1-6, do not meet
the definition of "footwear for men, youths and boys"  in
Additional U.S. Note l(b), Chapter 64, HTSUS, as the footwear at
issue is commonly worn by both sexes.

HOLDING:

     The styles in issue are classifiable under subheading
6403.91.90, HTSUS, which provides for footwear with outer soles
of rubber, plastics, leather or composition leather and uppers of
leather, other footwear, covering the ankle, other, for other
persons or under subheading 6403.99.90, HTSUS, which provides for
footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather, other footwear, other,
other, other, for other persons, valued over $2.50/pair,
depending upon whether the footwear covers the ankle.
     
     HRL 955960 is affirmed

                              Sincerely,

                              John Durant, Director
                              Commercial Rulings Division